P. v. Dhaliwal

Filed 8/29/06 P. v. Dhaliwal CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Shari K. Silver, Judge. Affirmed.

Ronald A. Jackson for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________________

Harvinder Singh Dhaliwal was convicted of one count of vehicular manslaughter and one count of leaving the scene of an accident. He was sentenced to state prison for a term of seven years. Dhaliwal appeals, claiming his Wheeler motion and his motions to dismiss, to reopen, for judgment of acquittal, and for a new trial should have been granted, and contending there were evidentiary and instructional errors. We affirm the judgment.

FACTS

At about 7 o’clock on a summer evening, Dhaliwal was driving an 18-wheel tractor-trailer (27-foot long tractor, 53-foot long trailer) westbound on Highway 126 when he initiated a U-turn in front of Renee Eberhard, who was driving her Honda westbound in the adjacent lane. The Honda collided with the trailer. Dhaliwal stopped and looked back toward the Honda, then drove across the median dragging the Honda underneath the trailer. Shauna Haran and Joseph Shafer (who had been driving westbound behind Dhaliwal) stopped their cars and yelled at Dhaliwal to stop. An eastbound driver (Washington Reid) saw the tractor-trailer cross over the median pulling the Honda with it. Reid stopped next to the tractor and honked his horn. Dhaliwal stopped.

Haran ran to Eberhard, who tried to speak but could not. Reid crawled under the trailer, saw fluid leaking from the Honda, and asked Dhaliwal to turn off the truck’s engine. Reid saw Eberhard try to say “help” (her lips moved). Haran, Shafer, and another passerby called 911 (but there was no record of a call from Dhaliwal to 911). Paramedics arrived and pronounced Eberhard dead at 7:27 p.m.

California Highway Patrol Officer Charles DeVille, one of the first officers to arrive after the paramedics, obtained Dhaliwal’s Canadian driver’s license and told him to remain at the scene. When the officer asked what had happened, Dhaliwal said he was headed to Fillmore (to the west of the accident scene). Dhaliwal had an accent but spoke English and appeared to understand the officer’s questions and commands.

Officer Eric Stevenson, one of the accident investigators, found three skid marks from Eberhard’s Honda, the first about 65 feet from the point of impact. The Honda struck the trailer in the number one lane, then was dragged by the trailer as it turned and crossed the center divider, a distance of about 30 feet. In the end, the tractor was on the asphalt shoulder of the eastbound highway with the rear of the trailer blocking the eastbound number one lane.

Officer Eric Bejar, another accident investigator, talked to Dhaliwal at about 7:40 p.m. Dhaliwal said he was driving at about 50 miles per hour in the westbound number two lane when a white car stopped abruptly ahead of him. He thought the Honda was about 100 feet away, and steered left into the number one lane to avoid an impact with the white car. As he was moving to the left, he felt an impact. None of the witnesses had seen a white car, and there was no evidence (other than Dhaliwal’s testimony) that he had braked to avoid a collision with the phantom vehicle.

Dhaliwal was charged by amended information with vehicular manslaughter and leaving the scene of an accident. (Pen. Code, §§ 192, subd. (c)(1); Veh. Code, § 20001, subd. (a).)[1] At trial, the People presented evidence of the facts summarized above, plus testimony to establish that the accident was caused by Dhaliwal’s illegal U-turn. Dhaliwal was convicted as charged.

DISCUSSION

I.

Dhaliwal contends the trial court should have granted his motion to dismiss count two (leaving the scene of an accident). We disagree.[2]

Joseph Shafer testified at the preliminary hearing that he first saw the truck when it was perpendicular to traffic, and that he saw the Honda collide with the truck and move underneath the back of the trailer. Shafer saw Dhaliwal turn his head, look in the direction of the Honda, then continue to drive the truck forward across the median, dragging the Honda a distance of 15 to 20 feet. Shafer and another witness yelled at Dhaliwal to “stop the truck.” Officer Bejar testified that Dhaliwal told him at the scene that, while trying to avoid hitting a car in front of him, he felt the impact when the Honda hit his trailer and that, after the impact, he “was trying to get his truck out of the road, trying to steer it to the eastbound right shoulder [and] that’s why he continued to pull the vehicle.”

The motion to dismiss was properly denied because there was “some rational ground for assuming the possibility that an offense ha[d] been committed and the accused [was] guilty of it.” (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226 (italics and internal quotes omitted); People v. Velasquez (1975) 53 Cal.App.3d 547, 553.) The testimony summarized in the preceding paragraph created a reasonable inference that Dhaliwal, knowing the accident had occurred, failed to stop and render assistance. No more was required.

II.

Dhaliwal contends his statements to Officer Bejar should have been excluded because they were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. We disagree.

Officer DeVille was the first officer to arrive at the scene, and he was the one who told Dhaliwal to stay there. Later, Officer Bejar spoke to Dhaliwal. At trial, when the prosecutor asked Officer Bejar if he had talked to Dhaliwal “about what had occurred,” the defense objected on the ground that Dhaliwal was “restrained“ (because Officer DeVille told him to wait) and thus should have been advised of his rights before he was questioned. The trial court disagreed, finding the officers were “at the investigation and inquiry stage” and that Miranda was not implicated.

We agree with the trial court. “General on-the-scene questioning as to facts surrounding a crime . . . is not affected” by the Miranda rule (Miranda v. Arizona, supra, 384 U.S. at p. 477), and the temporary detention for investigation in this case was proper in every respect. (People v. Clair (1992) 2 Cal.4th 629, 678-679; People v. Bellomo (1992) 10 Cal.App.4th 195, 198-200.)

III.

We summarily reject Dhaliwal’s contention that Reid’s testimony about Eberhard’s attempt to speak should have been excluded because Reid was not qualified as a “lip reader.” First, Reid’s testimony about what he saw did no more than confirm what he heard -- because he testified that he heard her say, in a “very light whisper, “‘Help. Help me.’” He was testifying to his own perception. (Evid. Code, § 800, subd. (a).) Second, lip reading is not a “subject that is sufficiently beyond common experience so that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) The evidence was relevant to the issue (Dhaliwal’s failure to render reasonable assistance) and admissible. (Evid. Code, § 403, subd. (a); People v. Lucas (1995) 12 Cal.4th 415, 467; People v. Pizzaro (2003) 110 Cal.App.4th 530, 543, fn. 10, disapproved on other grounds in People v. Wilson (2006) 38 Cal.4th 1237, 1250-1251.)

IV.

Dhaliwal contends his Wheeler motion should have been granted. (People v. Wheeler (1978) 22 Cal.3d 258.) We disagree.

A.

During voir dire, the prosecutor excused (1) Juror 9226, who worked at Jack-in-the-Box and was single with no children, (2) Juror 1689, who worked for a medical billing company and was single with no jury experience, and (3) Juror 2018, a radiology student born in Punjab, India, single with no children and no jury experience. After Juror 2018 was excused, the defense made a Wheeler motion, noting that the prosecutor had earlier challenged another Punjabi juror (Dhaliwal is Punjabi) and claiming the challenges were impermissibly based on ethnicity.

The trial court found a prima face case. The prosecutor, in turn, explained that she had challenged the jurors because they were young, single, and had no life or jury experience (important in this case, she said, because there would be “two sides” to the story). When the court confirmed that the prospective jurors were young, the defense switched gears and complained that age could not be the basis for a challenge. The prosecutor said her objections were not to their ages but to their lack of experience. The trial court found the reasons were legitimate and denied the motion.

B.

We reject Dhaliwal’s contention that “life experience” is an impermissible euphemism for age. Aside from the fact that “[y]outh is not recognized as a cognizable class for purposes of a Wheeler motion” (People v. McGhee (1987) 193 Cal.App.3d 1333, 1351-1352), a prosecutor is entitled to reject a prospective juror who lacks both life and jury experience (People v. Perez (1994) 29 Cal.App.4th 1313, 1328; People v. Alvarez (1996) 14 Cal.4th 155, 197-198; People v. Reynoso (2003) 31 Cal.4th 903, 924).

V.

Dhaliwal contends his motion for judgment of acquittal (§ 1118.1) should have been granted (i) as to count 1 to reduce the vehicular manslaughter charge to a misdemeanor (because there was “no evidence he made a U-turn in total disregard for the rights of others”), and (ii) as to count 2 because there was no proof beyond a reasonable doubt that he failed to comply with his statutory duties. We disagree.

The evidence established that Dhaliwal was driving 50 miles per hour before the accident, that he saw Eberhard’s car behind him before he turned into her lane, that he felt the impact, that he drove across the highway after he felt the impact, that he did not stop the truck until the witnesses told him to do so, that Eberhard was alive after the accident, and that he made no effort at all to render assistance. Accordingly, substantial evidence supports both counts and the motion was properly denied. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.)

VI.

Dhaliwal contends there were several instructional errors. We disagree.

A.

Dhaliwal requested the following special instruction: “A defendant is not required to render assistance to another individual injured in an accident where such individual is being adequately cared for by others. If you find that other individuals at the scene of the accident were adequately caring for the person injured in the accident you may not find the defendant guilty of count two based on the contention he failed to provide reasonable assistance. Under such circumstances reasonable assistance is not ‘necessary.’”

The trial court rejected this instruction and gave its own based on language from People v. Scheer (1998) 68 Cal.App.4th 1009, 1028-1029: “The law requires that at a minimum the driver must first ascertain what assistance, if any, the injured person needs and then the driver must make a reasonable effort to see that such assistance is provided, whether thr[ough] himself or third parties.

A driver’s statutory duty to render reasonable assistance after a collision is not nullified merely because bystanders are on the scene or offer assistance.”

The trial court’s instruction was correct, Dhaliwal’s was not -- because his implied inaccurately that a driver has no duty to render aid when aid is provided by others. (People v. Limon (1967) 252 Cal.App.2d 575, 578; People v. Scheer, supra, 68 Cal.App.4th at pp. 1027-1029; People v. Gurule (2002) 28 Cal.4th 557, 659.)

B.

Dhaliwal contends the trial court incorrectly modified CALJIC No. 12.70 (felony hit and run) by adding the words “who is not deceased.”[3] We disagree.

Dhaliwal’s position was that Eberhard died at the time of impact, and that he thus had no obligation to render assistance. As we have explained, this argument ignores the evidence that Eberhard did not die immediately, and that she in fact was conscious and trying to ask for help. More to the point, as the prosecutor argued, Dhaliwal did not make any effort at all to determine whether Eberhard was dead or alive and whether she needed assistance. The instruction was correct as given.

C.

Dhaliwal contends the trial court “compounded the error” of admitting Officer Bejar’s testimony about Dhaliwal’s description of the accident by instructing the jury according to CALJIC No. 2.03 (falsehood showing consciousness of guilt).[4] As we have explained, Officer Bejar’s testimony was properly admitted. Because Dhaliwal’s description differed from the description provided by the witnesses and from the physical evidence, the instruction was properly given. (People v. Williams (1995) 33 Cal.App.4th 467, 478; People v. Edwards (1992) 8 Cal.App.4th 1092, 1103.)

D.

Dhaliwal contends the trial court erred when it modified CALJIC No. 2.52 (flight after crime).[5] We disagree.

During the jury instruction conference, Dhaliwal at first claimed there was no evidence of attempted flight. As the court pointed out, there was -- Dhaliwal admitted to Officer Bejar that he was aware of the Honda before he cut in front of it, and that he felt the impact; Haran testified that Dhaliwal stopped the tractor-trailer after the impact, looked back toward the Honda, then proceeded with his U-turn through the median, dragging the Honda along with him, and that Dhaliwal did not stop until Haran and others yelled at him to do so. The jury was entitled to decide whether Dhaliwal’s actions were motivated by a consciousness of guilt and an effort to avoid arrest. The “if any” made it clear that the jury was to decide whether the evidence showed consciousness of guilt, and the instruction was properly given. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)

E.

Over Dhaliwal’s objection, the trial court instructed the jury according to CALJIC No. 4.36 (ignorance or mistake of fact) because there was evidence that Dhaliwal had a Canadian driver’s license and the court was concerned the jury might speculate that a failure to know the law might be a defense.[6] Dhaliwal claims this was error but does not cite any law to support his position. The issue was waived (People v. Griffin (2004) 33 Cal.4th 536, 589, fn. 25; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1543, fn. 3) but is in any event a non-issue because the instruction was properly given (People v. Smith (1966) 63 Cal.2d 779, 793).

VII.

Dhaliwal contends the trial court should have granted his motion to reopen his case to call the coroner to testify about the time of Eberhard’s death -- evidence Dhaliwal claims only became “relevant and crucial” when the court decided to add the words “who is not deceased” to CALJIC No. 12.70 (fn. 3, ante). We disagree.

At a jury conference held toward the end of trial, the court decided to instruct according to CALJIC No. 12.70 as modified. The prosecutor and defense counsel then presented their arguments. The next morning, defense counsel asked to reopen to offer a photograph of Eberhard which, he said, would allow him to “argue to the jury that . . . the nature of the injuries [was] such that death was instant at the time of impact.” He said he had just realized the night before that the time of death “was much more important than [he] had previously appreciated.”

The trial court denied the request because there was no testimony about when the picture had been taken (how long after the impact) and it was thus irrelevant (and also particularly gruesome, which is why the defense had earlier objected to its admission into evidence). The defense then asked to reopen to call the coroner, but that request was denied on the basis that there was no factual or legal good cause to do so.

The trial court did not abuse its discretion. The request came too late (People v. Marshall (1996) 13 Cal.4th 799, 836; People v. Earley (2004) 122 Cal.App.4th 542, 546) and there in any event was no showing that the coroner was unavailable during trial, or any offer of proof about the coroner’s proposed testimony. The request was properly denied. (Evid. Code, § 354, subd. (a); People v. Sperl (1976) 54 Cal.App.3d 640, 657.)

VIII.

Dhaliwal contends the trial court should have granted his motion for a new trial. We disagree.

Dhaliwal’s motion raised several grounds, including newly discovered evidence. At the hearing on his motion, he offered a letter from Deputy Medical Examiner Jeffrey P. Gutstadt, M.D., who stated that “[d]ue to the extensive crush injury to the brain, as well as the damage to the larynx, the ability of the decedent to speak would have been severely compromised. It is unlikely that she would have been able to speak audible words. The extensive damage to the brain would have likely precluded purposeful eye movements as late as two to four minutes after the collision.” According to the defense, this opinion contradicted Reid’s testimony about what he saw and heard. The prosecutor opposed the motion, pointing out that the evidence could have been presented during trial and, in any event, would not have affected the outcome because the doctor did not opine about the time of death, which was the key to the issue about Dhaliwal’s failure to render assistance. The trial court denied the motion.

The motion was properly denied because the evidence was not newly discovered. The identity of the medical examiner was known to the parties during trial (they stipulated to his conclusions regarding the cause of death), and defense counsel’s claim that he was unaware of the issue until the conference about the jury instructions is belied by the fact that the charges necessarily made the time of death an issue. More to the point, the letter offered with the motion for a new trial did not address the time of death, and was cumulative to the extent it questioned Reid’s testimony about Eberhard’s effort to speak. (People v. Davis (1995) 10 Cal.4th 463, 523-524; People v. Delgado (1993) 5 Cal.4th 312, 328.)[7]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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Analysis and review provided by Santee Property line Lawyers.

[1] Subsequent undesignated section references are to the Penal Code. Subdivision (c)(1) of section 192 defines vehicular manslaughter to include “driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.” Sections 20001, 20003, and 20004 of the Vehicle Code provide that the driver of any vehicle involved in an accident resulting in injury to any person, other than himself, or in the death of any person shall immediately stop the vehicle at the scene of the accident, provide specified information to any police officer, and render reasonable assistance to anyone injured in the accident.

[2] Because the motion was based on the transcript of the preliminary hearing (§ 995, subd. (a)(2)(B)), we reject the Attorney General’s contention that the issue was waived by Dhaliwal’s failure to provide a transcript of the hearing on the motion to dismiss.

[3] CALJIC No. 12.70, as modified, provided as relevant that “[e]very person who as the driver of any vehicle is knowingly involved in an accident resulting in the death of or injury to any person other than himself must . . . [r]ender reasonable assistance to any person injured who is not deceased, including the transportation or making arrangements for the transportation of any injured person to a physician, surgeon or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary. . . .” (Emphasis added.)

[4] CALJIC No. 2.03 told the jury: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crime or crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”

[5] As modified and given, CALJIC No. 2.52 told the jury: “The attempted flight, if any, of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.” (Emphasis added.)

[6] CALJIC No. 4.36 told the jury: “When the evidence shows that a person voluntarily did that which the law declares to be a crime, it is no defense that he did not know that the act was unlawful or that he believed it to be lawful.”

[7] Our rejection of all of Dhaliwal’s claims of error necessarily means we reject his claim of cumulative error. (People v. Beeler (1995) 9 Cal.4th 953, 994.)